Shiv Dutt Bali vs Manohar Lal Saini

Gopal Singh, J.—This is revision petition by Shiv Datt Bali against Manohar Lal Saini. The petitioner was Head Clerk in the office of Zila Parishad, Hoshiarpur, when Manohar Lal respondent worked as Secretary of the Zila Parishad from July, 1962 to November, 1953. The respondent of Development and Panchayat. He went back as District Development and Panchayat Officer. While the respondent was working in that capacity in 1966, he wrote the following remarks about she petitioner pertaining to the work of the petitioner for the year 1962-63;

Intelligent but unreliable. He is an intriguer. On representation being made by the petitioner, the above remarks were expunged.

On May 30, 1967, a complaint was filed by the petitioner against the respondent for offence u/s 500, Indian Penal Code. The respondent was summoned for September 25, 1967. He made an application on that date to the trial Magistrate raising the objection that in the absence of sanction for prosecution of the respondent u/s 197, Code of Criminal Procedure, the complaint deserved dismissal objection raised prevailed. By order dated October 10, 1967, the trial Magistrate dismissed the complaint and discharged the respondent Revision petition was filed from that order by the petitioner. It was dismissed on January 9, 1969 and the order of the trial Magistrate was confirmed.

In order that Section 197, Code of Criminal Procedure may apply, the following three ingredients of the Section must be satisad:

(i) that the accused sought to be prosecuted is a public servant

(ii) that he is not removable from his office save by or with the sanction of the State Government and

(iii) that he is accused of an offence alleged to have bee committed by him while, acting or purporting to act in the discharge of his official duty.

The applicability of the Section in respect of the first two ingredients, namely, (i) and (iii) has not been challenged. It is only on the question of applicability of ingredient (iii) of the Section that the controversy has been raided. If the plea raised is sought to be covered by the third ingredient of that Section, a public servant claiming protection on that plea under that ingredient must satisfy that (a) the act fell within the scope of his official duty as public servant and that (b) the act was committed while the public servant was acting or purporting to act.

The act would be in the discharge of his official duty, if the public servant was entitled or authorized to act. In other words, he had the power, authority or jurisdiction to act. It will not make any difference if he acted erroneously or in a manner in which he should not have cited. All the same he must have power to act. In the present case, it has been stressed by Shri S.S. Kang, counsel for the petitioner that uptil January 12, 1965, it is only the Chairman and not the Secretary of the Zila Parishad, who could append confidential remarks to the personal files of his subordinates. He adds that power had been conferred upon the Secretary of the Zila Parishad to give those remarks from January 12 1965. In other words, if remarks were to be given for the year 1962-63, when the respondent was functioning as Secretary of the Zila Parishad, the remarks had to be given not by the Secretary but by its Chairman. It will not make any difference in the least in so far as the exercise of power to give remarks by the Chairman in respect of the year 1962-63 is concerned, even if that power stood conferred upon the Secretary in 1966, when he gave those remarks the secretary exercised his power in relation to the period of 1962-63, when he worked as Secretary and did not exercise any power in respect of any period, which fell after January 12, 1965. The Chairman of the Zila Parishad was the sole authority to the exclusion of the Secretary to give confidential remarks to the petitioner. The underlying principle to determine whether an act falls within the scope of official duty of a public servant is whether the public servant can successfully justify his claim of the act falling within the compass of his powers or duties If the act falls outside the ambit of the duties dischargeable by him and is aliened to them, the act would be held not to be within the scope of his official duty.

According to the intimation sent to respondent by the petitioner prior to the date of remarks were given by the respondent it was specifically communicated to him that not only the remarks were being given by him six months after he ceased to act as a Secretary but also he had no authority by virtue of his office as Secretary of Zila Parishad to give remarks in respect of the petitioner as that power vested only in its Chairman and not in the secretary and yet he chose to append the remarks to the personal file of the petitioner.

On representation of the petitioner to the Government, these remarks given by the respondent were expunged on the ground that the respondent had no authority to give those remarks. As the adverse remarks given by the respondent could not have been given by him for want of authority, the respondent misappropriated or usurped tint authority to give remarks against the petitioner. It could not be held that the respondent while giving the re narks acted in the discharge of his official duty as Secretary of the Zila Parishad as its Chairman alone could act. The protection claimed by the respondent is not covered by Section 197, Code of Criminal Procedure.

In the result, I allow the revision petition set aside the orders of the Courts below and direct that the complaint be proceeded with and decided according to law. The parties are directed to appear before the trial Court on August 27, 1970.